“This is a pivotal moment for the future of UK media”

Chris Hutchings wonders whether proposals for a Media Standards Authority would create another PCC, or radical change

Regulation of UK print and online media is about to be radically overhauled. The Press Complaints Commission has been condemned as “toothless” and unfit for purpose and, in the wake of the phone hacking scandal and the Leveson Inquiry, is to be replaced.

The PCC was often unfairly criticised for failing to exercise powers that it never had, such as the ability to audit media publications or to fine them. However, it is critical that its replacement should be fit for the 21st century: participation in regulation should be the norm for both print and online publications; and its enhanced powers should ensure that the body isn’t perceived as a media lapdog.

Proposals for reform have to date been put forward by a range of individuals and groups. Max Mosley, who became an unlikely poster boy for reform following his costly and lengthy battle with the News of the World, is in favour of government regulation of the media with participation by all being compulsory. He regards that rule-making and enforcement should be separated in future.

Lord Hunt, chairman of the PCC, is against statutory regulation of the media and has highlighted the extent to which it is already subject to extensive regulation. He does, however, favour a beefed-up regulator with the media itself involved in rule-making. Of particular interest is his proposal that it might be possible for a self-regulatory regime which involves advertisers being permitted to advertise only in publications which participate in the regulation.

Separately, a group of academics, journalists, lawyers and others have come up with more radical proposals. Proposals for a Media Standards Authority (MSA) were drafted by Hugh Tomlinson QC. The proposed MSA would be independent of government and the media but former editors and some journalists would be involved in the governing council. Participation would be voluntary but there would be significant incentives, such as enhanced legal defences for privacy and libel claims and an adjudication scheme which all complaints would need to go through before going to Court.

The body would have the power to audit and investigate participants. It would be able to increase costs of subscriptions for repeat Code breaches and fines “for the most serious cases”.

A key flaw of current regulation is the ability of publishers to opt out of PCC membership. The lack of compulsory participation allows publishers such as Northern & Shell to escape regulation. Membership of the new body, on the basis of the proposals most likely to be adopted, will continue to be voluntary. Proposed “incentives” may make this less of a problem.

Proposals would also make it necessary for complaints first to be adjudicated by the new body before the dispute could be litigated. In principle, this would seem to offer a more cost-effective solution for those who believe they have been unfairly attacked by the media. However, if the media do not accept any particular adjudication, it will have the ability then to litigate which would ultimately make the process more costly for claimants. Arguably, this makes the usual inequality of arms more pronounced.

The “enhanced” defences for publishers in respect of libel complaints could result in an imbalance between the rights of the media versus those of the public: a publisher would be entitled to dispute the finding of the new body and pursue the matter to court whilst an individual would be bound by the adjudication which would give the publisher a complete defence to any subsequent legal complaint.

It is important that potential flaws, as well as the significant advantages of a strengthened body, are debated. This is a pivotal moment for the future regulation of the UK media, and the opportunity for all concerned is significant.

Chris Hutchings is a media law partner at Hamlins LLP